Citation Nr: 1342400
Decision Date: 12/23/13 Archive Date: 12/31/13
DOCKET NO. 10-18 931 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri
THE ISSUES
1. Entitlement to an earlier effective date than July 23, 2009 for service connection for posttraumatic stress disorder (PTSD).
2. Entitlement to a higher initial evaluation (rating) in excess of 30 percent for PTSD.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
B. J. Dempsey, Associate Counsel
INTRODUCTION
The Veteran, who is the appellant, had active duty service from July 1962 to June 1964, September 1964 to September 1967, and September 1969 to October 1972.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.
The Board has reviewed the Veteran's physical claims files, as well as the electronic file on the "Virtual VA" system, to ensure a complete review of the evidence in this case.
FINDINGS OF FACT
1. The Veteran filed a claim for service connection for PTSD on July 23, 2009.
2. For the entire initial rating period, the Veteran's PTSD has been characterized by social and occupational impairment with reduced reliability and productivity due to nightmares, grief, flashbacks, paranoia, emotional outbursts, and panic attacks.
3. For the entire initial rating period, the Veteran's PTSD has not been characterized by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances; and inability to establish and maintain effective relationships.
CONCLUSIONS OF LAW
1. The criteria for an earlier effective date, prior to July 23, 2009, for the grant of service connection for PTSD have not been met. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.400 (2013).
2. For the entire initial rating period, resolving reasonable doubt in the Veteran's favor, the criteria for an initial disability rating of 50 percent for PTSD, but no higher, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411 (2013).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Duties to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits.
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).
As discussed below, the resolution of the Veteran's appeal for an earlier effective date turns on the law as applied to the undisputed facts regarding the dates of receipt of claim and date entitlement arose. As this appeal turns on a matter of law, further assistance, such as the further procurement of records, would not assist the Veteran with the claim. Consequently, no further notice or development under the VCAA is warranted for this appeal. See Mason v. Principi, 16 Vet. App. 129, 132 (2002).
When an initial rating appeal or earlier effective date appeal comes before the Board following a decision to grant service connection and assign an initial rating and assign an effective date for service connection, no additional VCAA notice is required. Courts have held that, once service connection is granted and the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that that separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date); 38 C.F.R. § 3.159(b)(3)(i) (stating that there is no duty to provide VCAA notice upon receipt of a NOD).
VA has also satisfied its duty to assist the Veteran in developing the claim. The RO obtained VA and private medical records. The Veteran has not indicated, and the record does not contain, evidence of receipt of benefits from the Social Security Administration. See 38 C.F.R. § 3.159(c)(2). After a complete and thorough review of the claims file, the Board concludes that all known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claim file. Indeed, the Veteran has not contended otherwise.
Additionally, VA met its duty to provide an adequate medical examination. In October 2009, the Veteran underwent a VA PTSD examination (by QTC Medical Services). To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The VA examiner considered pertinent evidence of record, including the Veteran's history and personal statements, examined the Veteran, provided a reasoned nexus opinion, and presented information regarding occupational and social impairment necessary to apply the appropriate rating criteria. Thus, the Board finds that VA's duty to assist with respect to obtaining a VA examination concerning the issue adjudicated herein has been met. See 38 U.S.C.A. § 3.159(c).
Earlier Effective Date for PTSD
The Veteran asserts that the RO should have assigned an earlier effective date than July 23, 2009 for service connection for PTSD. The Veteran contends that an effective date consistent with experiences that triggered recollections of his service in Vietnam would be more appropriate.
Except as otherwise provided, the effective date of an evaluation and award for pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400.
In original service connection cases, the effective date is the date of receipt of claim or the date entitlement arose, whichever is later. However, if the claim is received within one year of separation from service, the effective date will be the day following the date of separation from service. 38 C.F.R. § 3.400(b)(2).
A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA.
38 U.S.C.A. § 5101(a) (West 2012). A "claim" is defined as a formal or informal communication, in writing, requesting a determination of entitlement, or evidencing a belief in entitlement to a benefit. 38 C.F.R. §§ 3.1(p), 3.151 (2013). Any communication or action indicating intent to apply for one or more VA benefits may be considered an informal claim. 38 C.F.R. § 3.155 (2013). Such an informal claim must identify the benefit sought. Id. 38 C.F.R. § 3.1(p) defines application as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See also Rodriguez v. West, 189 F.3d. 1351 (Fed. Cir. 1999). The date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r) (2013).
VA is required to identify and act on informal claims for benefits. 38 U.S.C.A.
§ 5110(b)(3); 38 C.F.R. §§ 3.1(p), 3.155(a); see also Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992). Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim.
Initially, the Board finds that the Veteran submitted an original, formal claim for service connection for PTSD in July 2009. A VA Form 21-526 claiming service connection for PTSD was received by VA on July 23, 2009, over 25 years after being discharged from active duty. See DD Form 214. This claim was granted by a November 3, 2009 rating decision, effective July 23, 2009 - the date the claim was received by VA.
Additionally, the Board finds that there was no correspondence received by VA prior to July 23, 2009 that can be construed as an informal claim for service connection for PTSD. The earliest evidence of any kind associated with the act or intention of filing a claim for service connection for PTSD in the record is the July 2009 VA Form 21-526. While the Veteran has stated that he began experiencing symptoms of PTSD prior to submitting the July 2009 VA Form 21-526, this is evidence relevant to the date entitlement arose, not the date the claim was filed. In other words, there is no evidence in the record to establish a date of claim that is earlier than the date VA received the Veteran's VA Form 21-526. If evidence shows that entitlement arose earlier, it still remains that the effective date statute and regulations specifically provide that the proper effective date for service connection is the later of the two dates. Here, the date of the original service connection claim is firmly established as later than the date entitlement arose; therefore, the date of the original service connection claim is the proper effective date under the facts and circumstances of this case. See 38 U.S.C.A. § 5110(a);
38 C.F.R. § 3.400.
Thus, after consideration of all the evidence, the Board finds that the effective date for service connection for PTSD is July, 23, 2009 - the date of the claim for service connection. Based on this finding, the appeal for an effective date earlier than July 23, 2009 for service connection for PTSD must be denied. See 38 U.S.C.A.
§ 5110(a); 38 C.F.R. § 3.400. In cases such as this, where the law is dispositive and the case turns on undisputed facts, the claim should be denied because of the absence of legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).
Initial Rating for PTSD
Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2013). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3.
In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Governing regulations include
38 C.F.R. §§ 4.1 and 4.2, which require the evaluation of the complete medical history of a veteran's condition.
The Court has indicated that a distinction must be made between a veteran's dissatisfaction with original ratings and dissatisfaction with determinations on later filed claims for increased ratings. Staged ratings - different disability ratings during various time periods - may be appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Here, the Board will evaluate the issue as an appeal for higher evaluation of the original award. In such cases, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. Id.
The schedular criteria, effective as of November 7, 1996, incorporate the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). 38 C.F.R. §§ 4.125, 4.130 (2013). A rating of 10 percent is warranted for PTSD if there is occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication. 38 C.F.R. § 4.130, DC 9411.
A rating of 30 percent is warranted for PTSD if there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, recent events). Id.
A 50 percent rating is warranted if it is productive of occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to compete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id.
A 70 percent rating, may be assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. Id. The criteria for a 70 percent rating are met if there are deficiencies in most of the areas of work, school, family relations, judgment, thinking, and mood. Bowling v. Principi, 15 Vet. App. 1, 11-14 (2001).
A 100 percent schedular evaluation contemplates total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. 4.130, DC 9411.
The use of the term "such as" in the general rating formula for mental disorders in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of the symptoms contemplated for each rating, in addition to permitting consideration of other symptoms particular to each veteran and disorder, and the effect of those symptoms on his/her social and work situation. Id.
In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (2013), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that VA "intended the General Rating Formula to provide a regulatory framework for placing veterans on a disability spectrum based upon their objectively observable symptoms." The Federal Circuit stated that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." It was further noted that "§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas."
In assessing the evidence of record, it is important to note that the Global Assessment of Functioning (GAF) score is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing DSM-IV at 32).
A GAF score of 41-50 indicates "Serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job)." Id.
A GAF score of 51-60 indicates "Moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning, (e.g., few friends, conflicts with peers or co-workers)." Id.
A GAF score of 61-70 indicates "Mild symptoms (e.g., depressed mood and mild insomnia) OR some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships. Id.
The GAF score and interpretations of the score are important considerations in rating a psychiatric disability. See, e.g., Richard, 9 Vet. App. at 267; Carpenter v. Brown, 8 Vet. App. 240, 243 (1995). However, the GAF score assigned in a case, like an examiner's assessment of the severity of a condition, is not dispositive of the evaluation issue. The GAF score must be considered in light of the actual symptoms of a veteran's disorder, which provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126(a) (2013).
In the November 2009 rating decision on appeal, service connection for PTSD was granted, and an initial disability rating of 30 percent was assigned, effective July 23, 2009, the date of receipt of the claim for service connection. The Veteran submitted a notice of disagreement with the initial rating assigned, contending that the severity of his PTSD symptoms - primarily nightmares, grief, and emotional outbursts - warranted an initial rating in excess of 30 percent.
After a review of all the evidence, the Board finds that, for the entire initial rating period, the Veteran's service-connected PTSD has been characterized by occupational and social impairment due to symptoms including nightmares, grief, flashbacks, paranoia, emotional outbursts, and panic attacks, which more nearly approximates the criteria for a 50 percent disability rating under Diagnostic Code 9411. 38 C.F.R. § 4.130.
A comparison of the Veteran's reports throughout the rating period shows that the Veteran has highlighted the effects of the same PTSD symptoms. In a January 2012 letter, the Veteran described near-constant nightmares and an increasing tendency to become "enraged." Nightmares and Vietnam-related grief were also the focus of the Veteran's July 2009 VA Form 21-4138, which identified related symptoms including insomnia, depression, and undue stress. In the July 2009 VA Form 21-4138, the Veteran also discussed how he had recurring nightmares, flashbacks, "scary thoughts, edginess, angry outbursts, and extreme mood swings."
The October 2009 VA (QTC) PTSD examination report lists current psychiatric symptoms as nightmares, panic attacks, and flashbacks to Vietnam. The Veteran estimated that nightmares occurred twice a week, that panic attacks occurred three times per month, and that the severity of these episodes was "moderate to severe." Other symptoms listed include chronic paranoia, which the report describes as "moderately severe." A GAF score of 60 was assessed, which included a note indicating "moderate difficulties in social functioning." The QTC examiner also described how retirement negatively affected the Veteran's ability to preoccupy his attention from PTSD stressors and cope with the disorder's effects. The QTC examiner's assessment was that "there is occasional decrease in social efficiency or there are intermittent periods of inability to relate socially due to PTSD signs and symptoms, but generally a satisfactory functioning."
Following the October 2009 PTSD examination, the Veteran participated in a 10-session PTSD group therapy course at the VA Medical Center (VAMC) in Saint Louis, Missouri. Throughout the course - which spanned December 2009 to February 2010 - the Veteran demonstrated an alert and oriented presence; participated appropriately; appeared open to intervention; and did not report any intent to harm himself or others. A March 2010 VAMC psychiatry note following the conclusion of the PTSD course shows that the examiner assessed a GAF score of 45. At the same time, however, the VA psychiatrist also noted normal mood and affect; good appetite; fair sleep; alertness and orientation to person, place, and time; absence of suicidal and aggressive thoughts; and absence of delusions and hallucinations. Here, the Board notes that the examiner's assessment of a 45 GAF score is inconsistent with these additional observations. When weighing and considering the evidence presented in the March 2010 VAMC psychiatry note, the Board assigns more probative value to the Veteran's actual impairment and demonstrated symptomatology. Thus, the VA psychiatrist's GAF assessment, while a helpful characterization of the Veteran's occupational and social impairment, is afforded less probative value.
In an April 2010 letter, the Veteran submitted a list of four factors that he wanted VA to consider as part of his claim for service connection for PTSD. First, he noted his participation in PTSD therapy courses at the VAMC in St. Louis, Missouri. Second, he stated that he was prescribed sleep medication in order to help with restlessness. Third, he expressed his concern over skin rashes that have been present since Vietnam. Finally, he stated that he submitted blood samples in order to determine if Agent Orange had entered his nervous system. These same four points were reflected in the Veteran's subsequent August 2011 letter.
In a separate April 2010 letter labeled "Supplemental Notice of Disagreement - VA Form 9," the Veteran outlined several contentions with the 30 percent disability rating assigned to service-connected PTSD. The Veteran stated that nightmares and emotional outbursts had continued since the October 2009 PTSD screening and increased in frequency. The Veteran identified statements included in the October 2009 PTSD screening report that indicated inconsistencies in doctor-observed PTSD symptoms. Specifically, the Veteran highlighted how the October 2009 QTC examiner noted "few signs of PTSD," "no signs of PTSD," and "masked" symptoms of PTSD. The Veteran clarified previous estimates of his sense of guilt over his brother's death in Vietnam - the stressor associated with service-connected PTSD - for which he feels 95 percent responsible. In an effort to dispel the October 2009 QTC examiner's observation that the Veteran is obese, the Veteran enumerated several activities to describe an active lifestyle.
In a May 2010 letter, the Veteran's wife described her husband's reclusive behavior since returning from Vietnam. The Veteran does not attend events including Veterans Day parades, Fourth of July festivities, and other gatherings with large crowds. The Veteran's wife said that the Veteran has not visited his brother's gravesite for over 40 years due to feelings of guilt. In addition, the wife explained how the Veteran has stopped attending church services with his family on a regular basis.
On review of all the evidence, the Board finds that, for the entire rating period, the Veteran's PTSD has been characterized by nightmares, grief, flashbacks, paranoia, emotional outbursts, and panic attacks. As described by his wife, the evidence shows disturbances of motivation by the Veteran partially disengaging from activities such as regular attendance of church services and participation in other social events. The Veteran's symptoms have been relatively consistent; however, the Board has also considered the Veteran's assertion that nightmares and emotional outbursts have increased in frequency. The Veteran's GAF score decreased from 60 in October 2009 to 45 in March 2010, indicating a move from "moderate" symptoms to "serious" symptoms. See DSM-IV at 47. However, the VA psychiatrist who assessed the 45 GAF score also listed several unremarkable results relating to the Veteran's appetite, sleep, and mental status, which did not include actual findings to support a characterization of "serious" occupational and social impairment. Nonetheless, the VA psychiatrist's impression of "serious" symptomatology - when combined with a previous GAF score indicating "moderate" symptomatology and evidence of existing symptoms including nightmares, grief, flashbacks, paranoia, emotional outbursts, and panic attacks - does offer probative evidence of occupational and social impairment with reduced reliability and productivity due to those symptoms. For these reasons, and resolving reasonable doubt in favor of the Veteran, the Board finds that these symptoms more nearly approximate the criteria under Diagnostic Code 9411 for the higher 50 percent disability rating for the entire increased rating appeal period. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130.
The Board also finds that, for the entire rating period, the Veteran's PTSD has not more nearly approximated occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships.
During the October VA (QTC) 2009 PTSD examination, a mental status evaluation revealed no impairment in thought process, no impairment of communication, no delusions, no hallucinations, no inappropriate behavior, and no homicidal or suicidal thoughts. The Veteran showed an ability to maintain minimal personal hygiene and other basic activities of daily living. Normal orientation to person, place and time was displayed, and no memory loss or impairment was noted. The Veteran did not display any obsessive or ritualistic behavior, and did not show any irrelevant, illogical, or obscure speech patterns.
The Veteran has stated that he suffers from emotional outbursts. His wife has described these emotional outbursts, which involve yelling, screaming, and have resulted in her and the children leaving the house and spending the night at a nearby motel. While impaired impulse control is a factor listed among the description for a higher 70 percent rating, such a rating based on impaired impulse control is demonstrated by behavior "such as unprovoked irritability with periods of violence," which is not seen in the record. Nevertheless, the Board has considered this evidence when recognizing a higher 50 percent rating, and also weighed it with the objective findings found in the mental status evaluation in the October 2009 PTSD examination.
Thus, the record demonstrates that the Veteran's disability picture does not more nearly approximate the next-higher 70 percent rating criteria under Diagnostic Code 9411 for any period. Even though the Veteran exhibits some impaired impulse control, these outbursts were nonviolent and therefore did not actually meet the criterion contemplated by the 70 percent rating. In addition, the 50 percent rating contemplates disturbances in mood, which can include emotional outbursts. See 38 C.F.R. § 4.7 (the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating, otherwise, the lower rating will be assigned). Moreover, clinical observations provided by the October 2009 VA examiner and the March 2010 VA psychiatrist indicate the Veteran has consistently shown no impairments in thought process or communication; no suicidal or homicidal plans or intent; no inappropriate behavior; no memory loss or impairment; no delusions or hallucinations; an ability to maintain minimal personal hygiene and other basic activities of daily living; normal orientation to person, place, and time; no obsessive or ritualistic behavior that interferes with routine activities; and no irrelevant, illogical, or obscure speech patterns - all of which weighs against finding occupational and social impairment, with deficiencies in most areas. The Veteran's psychiatric symptomatology and social and occupational impairment manifested by his PTSD is, however, encompassed by the 50 percent disability rating criteria. For these reasons, an initial disability rating in excess of 50 percent is not warranted for any period. 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411.
As to the Veteran's request to consider evidence relating to skin rashes, Agent Orange, and diabetes, the Board notes that this evidence is not probative of the severity of service-connected PTSD.
Extraschedular Consideration
The Board has considered whether referral for extraschedular consideration is warranted. An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2013); see Fanning v. Brown, 4 Vet. App. 225, 229 (1993).
Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether the veteran's disability picture requires the assignment of an extraschedular rating.
Turning to the first step of the extraschedular analysis, the Board finds that all of the symptomatology and occupational and social impairment caused by the Veteran's PTSD is specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The schedular rating criteria, Diagnostic Code 9411, specifically provide for disability ratings based on a combination of history and clinical findings. In this case, considering the lay and medical evidence, the Veteran's PTSD has manifested nightmares, grief, flashbacks, paranoia, emotional outbursts, and panic attacks. These symptoms are either explicitly part of the schedular rating criteria or are "like or similar to" those symptoms and impairment explicitly listed in the schedular rating criteria. Mauerhan, 16 Vet. App. at 443. The levels of occupational and social impairment are also explicitly part of the schedular rating criteria. In addition, the GAF scores are incorporated as part of the schedular rating criteria as they tend to show the overall severity of symptomatology or overall degree of impairment in occupational and social functioning.
The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations.
38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1. In this case, the problems reported by the
Veteran are specifically contemplated by the criteria discussed above, including the effect on his daily life. In the absence of exceptional factors associated with PTSD, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown,
9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).
Lastly, an inferred claim for a total disability rating based on individual unemployability (TDIU) has not been raised by the Veteran or the evidence of record. The October 2009 PTSD examination report shows that the Veteran has retired from his position at Union Electric. The Veteran did not contend that unemployment was due to the effects of PTSD and has not alleged that he has been unable to secure or follow substantially gainful employment due to this disability; therefore, the Board finds that the issue of entitlement to a TDIU has not been reasonably raised by the record or by the Veteran. See Rice v. Shinseki, 22 Vet. App. 447 (2009).
ORDER
An earlier effective date, prior to July 23, 2009, for grant of service connection for PTSD is denied.
An initial disability rating for PTSD of 50 percent, but no higher, is granted for the entire rating period.
____________________________________________
J. PARKER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs